Supporting Law

Subtitle B—Visa Waiver

SEC. 711. MODERNIZATION OF THE VISA WAIVER PROGRAM.

(a) SHORT TITLE.—This section may be cited as the ‘‘Secure

Travel and Counterterrorism Partnership Act of 2007’’.

(b) SENSE OF CONGRESS.—It is the sense of Congress that—

(1) the United States should modernize and strengthen

the security of the visa waiver program under section 217

of the Immigration and Nationality Act (8 U.S.C. 1187) by

simultaneously—

(A) enhancing program security requirements; and

(B) extending visa-free travel privileges to nationals

of foreign countries that are partners in the war on

terrorism—

(i) that are actively cooperating with the United

States to prevent terrorist travel, including sharing

8 USC 1187 note.

8 USC 1101 note.

Secure Travel

and

Counterterrorism

Partnership Act

of 2007.

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PUBLIC LAW 110–53—AUG. 3, 2007 121 STAT. 339

counterterrorism and law enforcement information;

and

(ii) whose nationals have demonstrated their

compliance with the provisions of the Immigration and

Nationality Act regarding the purpose and duration

of their admission to the United States; and

(2) the modernization described in paragraph (1) will—

(A) enhance bilateral cooperation on critical

counterterrorism and information sharing initiatives;

(B) support and expand tourism and business

opportunities to enhance long-term economic competitiveness;

and

(C) strengthen bilateral relationships.

(c) DISCRETIONARY VISA WAIVER PROGRAM EXPANSION.—Section

217(c) of the Immigration and Nationality Act (8 U.S.C. 1187(c))

is amended by adding at the end the following new paragraphs:

‘‘(8) NONIMMIGRANT VISA REFUSAL RATE FLEXIBILITY.—

‘‘(A) CERTIFICATION.—

‘‘(i) IN GENERAL.—On the date on which an air

exit system is in place that can verify the departure

of not less than 97 percent of foreign nationals who

exit through airports of the United States and the

electronic travel authorization system required under

subsection (h)(3) is fully operational, the Secretary of

Homeland Security shall certify to Congress that such

air exit system and electronic travel authorization

system are in place.

‘‘(ii) NOTIFICATION TO CONGRESS.—The Secretary

shall notify Congress in writing of the date on which

the air exit system under clause (i) fully satisfies the

biometric requirements specified in subsection (i).

‘‘(iii) TEMPORARY SUSPENSION OF WAIVER

AUTHORITY.—Notwithstanding any certification made

under clause (i), if the Secretary has not notified Congress

in accordance with clause (ii) by June 30, 2009,

the Secretary’s waiver authority under subparagraph

(B) shall be suspended beginning on July 1, 2009,

until such time as the Secretary makes such notification.

‘‘(iv) RULE OF CONSTRUCTION.—Nothing in this

paragraph shall be construed as in any way abrogating

the reporting requirements under subsection (i)(3).

‘‘(B) WAIVER.—After certification by the Secretary

under subparagraph (A), the Secretary, in consultation with

the Secretary of State, may waive the application of paragraph

(2)(A) for a country if—

‘‘(i) the country meets all security requirements

of this section;

‘‘(ii) the Secretary of Homeland Security determines

that the totality of the country’s security risk

mitigation measures provide assurance that the country’s

participation in the program would not compromise

the law enforcement, security interests, or

enforcement of the immigration laws of the United

States;

‘‘(iii) there has been a sustained reduction in the

rate of refusals for nonimmigrant visas for nationals

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121 STAT. 340 PUBLIC LAW 110–53—AUG. 3, 2007

of the country and conditions exist to continue such

reduction;

‘‘(iv) the country cooperated with the Government

of the United States on counterterrorism initiatives,

information sharing, and preventing terrorist travel

before the date of its designation as a program country,

and the Secretary of Homeland Security and the Secretary

of State determine that such cooperation will

continue; and

‘‘(v)(I) the rate of refusals for nonimmigrant visitor

visas for nationals of the country during the previous

full fiscal year was not more than ten percent; or

‘‘(II) the visa overstay rate for the country for

the previous full fiscal year does not exceed the maximum

visa overstay rate, once such rate is established

under subparagraph (C).

‘‘(C) MAXIMUM VISA OVERSTAY RATE.—

‘‘(i) REQUIREMENT TO ESTABLISH.—After certification

by the Secretary under subparagraph (A), the

Secretary and the Secretary of State jointly shall use

information from the air exit system referred to in

such subparagraph to establish a maximum visa overstay

rate for countries participating in the program

pursuant to a waiver under subparagraph (B). The

Secretary of Homeland Security shall certify to Congress

that such rate would not compromise the law

enforcement, security interests, or enforcement of the

immigration laws of the United States.

‘‘(ii) VISA OVERSTAY RATE DEFINED.—In this paragraph

the term ‘visa overstay rate’ means, with respect

to a country, the ratio of—

‘‘(I) the total number of nationals of that

country who were admitted to the United States

on the basis of a nonimmigrant visa whose periods

of authorized stays ended during a fiscal year but

who remained unlawfully in the United States

beyond such periods; to

‘‘(II) the total number of nationals of that

country who were admitted to the United States

on the basis of a nonimmigrant visa during that

fiscal year.

‘‘(iii) REPORT AND PUBLICATION.—The Secretary of

Homeland Security shall on the same date submit to

Congress and publish in the Federal Register information

relating to the maximum visa overstay rate established

under clause (i). Not later than 60 days after

such date, the Secretary shall issue a final maximum

visa overstay rate above which a country may not

participate in the program.

‘‘(9) DISCRETIONARY SECURITY-RELATED CONSIDERATIONS.—

In determining whether to waive the application of paragraph

(2)(A) for a country, pursuant to paragraph (8), the Secretary

of Homeland Security, in consultation with the Secretary of

State, shall take into consideration other factors affecting the

security of the United States, including—

‘‘(A) airport security standards in the country;

Federal Register,

publication.

Certification.

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PUBLIC LAW 110–53—AUG. 3, 2007 121 STAT. 341

‘‘(B) whether the country assists in the operation of

an effective air marshal program;

‘‘(C) the standards of passports and travel documents

issued by the country; and

‘‘(D) other security-related factors, including the country’s

cooperation with the United States’ initiatives toward

combating terrorism and the country’s cooperation with

the United States intelligence community in sharing

information regarding terrorist threats.’’.

(d) SECURITY ENHANCEMENTS TO THE VISA WAIVER PROGRAM.—

(1) IN GENERAL.—Section 217 of the Immigration and

Nationality Act (8 U.S.C. 1187) is amended—

(A) in subsection (a), in the flush text following paragraph

(9)—

(i) by striking ‘‘Operators of aircraft’’ and inserting

the following:

‘‘(10) ELECTRONIC TRANSMISSION OF IDENTIFICATION

INFORMATION.—Operators of aircraft’’; and

(ii) by adding at the end the following new paragraph:

‘‘(11) ELIGIBILITY DETERMINATION UNDER THE ELECTRONIC

TRAVEL AUTHORIZATION SYSTEM.—Beginning on the date on

which the electronic travel authorization system developed

under subsection (h)(3) is fully operational, each alien traveling

under the program shall, before applying for admission to the

United States, electronically provide to the system biographical

information and such other information as the Secretary of

Homeland Security shall determine necessary to determine the

eligibility of, and whether there exists a law enforcement or

security risk in permitting, the alien to travel to the United

States. Upon review of such biographical information, the Secretary

of Homeland Security shall determine whether the alien

is eligible to travel to the United States under the program.’’;

(B) in subsection (c)—

(i) in paragraph (2)—

(I) by amending subparagraph (D) to read as

follows:

‘‘(D) REPORTING LOST AND STOLEN PASSPORTS.—The

government of the country enters into an agreement with

the United States to report, or make available through

Interpol or other means as designated by the Secretary

of Homeland Security, to the United States Government

information about the theft or loss of passports within

a strict time limit and in a manner specified in the agreement.’’;

and

(II) by adding at the end the following new

subparagraphs:

‘‘(E) REPATRIATION OF ALIENS.—The government of the

country accepts for repatriation any citizen, former citizen,

or national of the country against whom a final executable

order of removal is issued not later than three weeks

after the issuance of the final order of removal. Nothing

in this subparagraph creates any duty for the United States

or any right for any alien with respect to removal or release.

Nothing in this subparagraph gives rise to any cause of

action or claim under this paragraph or any other law

against any official of the United States or of any State

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121 STAT. 342 PUBLIC LAW 110–53—AUG. 3, 2007

to compel the release, removal, or consideration for release

or removal of any alien.

‘‘(F) PASSENGER INFORMATION EXCHANGE.—The government

of the country enters into an agreement with the

United States to share information regarding whether citizens

and nationals of that country traveling to the United

States represent a threat to the security or welfare of

the United States or its citizens.’’;

(ii) in paragraph (5)—

(I) by striking ‘‘Attorney General’’ each place

it appears and inserting ‘‘Secretary of Homeland

Security’’; and

(II) in subparagraph (A)(i)—

(aa) in subclause (II), by striking ‘‘and’’

at the end;

(bb) in subclause (III)—

(AA) by striking ‘‘and the Committee

on International Relations’’ and inserting

‘‘, the Committee on Foreign Affairs, and

the Committee on Homeland Security,’’

and by striking ‘‘and the Committee on

Foreign Relations’’ and inserting ‘‘, the

Committee on Foreign Relations, and the

Committee on Homeland Security and

Governmental Affairs’’; and

(BB) by striking the period at the end

and inserting ‘‘; and’’; and

(cc) by adding at the end the following

new subclause:

‘‘(IV) shall submit to Congress a report

regarding the implementation of the electronic

travel authorization system under subsection (h)(3)

and the participation of new countries in the program

through a waiver under paragraph (8).’’; and

(III) in subparagraph (B), by adding at the

end the following new clause:

‘‘(iv) PROGRAM SUSPENSION AUTHORITY.—The

Director of National Intelligence shall immediately

inform the Secretary of Homeland Security of any current

and credible threat which poses an imminent

danger to the United States or its citizens and originates

from a country participating in the visa waiver

program. Upon receiving such notification, the Secretary,

in consultation with the Secretary of State—

‘‘(I) may suspend a country from the visa

waiver program without prior notice;

‘‘(II) shall notify any country suspended under

subclause (I) and, to the extent practicable without

disclosing sensitive intelligence sources and

methods, provide justification for the suspension;

and

‘‘(III) shall restore the suspended country’s

participation in the visa waiver program upon a

determination that the threat no longer poses an

imminent danger to the United States or its citizens.’’;

and

Notification.

Reports.

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PUBLIC LAW 110–53—AUG. 3, 2007 121 STAT. 343

(iii) by adding at the end the following new paragraphs:

‘‘(10) TECHNICAL ASSISTANCE.—The Secretary of Homeland

Security, in consultation with the Secretary of State, shall

provide technical assistance to program countries to assist those

countries in meeting the requirements under this section. The

Secretary of Homeland Security shall ensure that the program

office within the Department of Homeland Security is adequately

staffed and has resources to be able to provide such

technical assistance, in addition to its duties to effectively monitor

compliance of the countries participating in the program

with all the requirements of the program.

‘‘(11) INDEPENDENT REVIEW.—

‘‘(A) IN GENERAL.—Prior to the admission of a new

country into the program under this section, and in conjunction

with the periodic evaluations required under subsection

(c)(5)(A), the Director of National Intelligence shall

conduct an independent intelligence assessment of a nominated

country and member of the program.

‘‘(B) REPORTING REQUIREMENT.—The Director shall provide

to the Secretary of Homeland Security, the Secretary

of State, and the Attorney General the independent intelligence

assessment required under subparagraph (A).

‘‘(C) CONTENTS.—The independent intelligence assessment

conducted by the Director shall include—

‘‘(i) a review of all current, credible terrorist

threats of the subject country;

‘‘(ii) an evaluation of the subject country’s

counterterrorism efforts;

‘‘(iii) an evaluation as to the extent of the country’s

sharing of information beneficial to suppressing terrorist

movements, financing, or actions;

‘‘(iv) an assessment of the risks associated with

including the subject country in the program; and

‘‘(v) recommendations to mitigate the risks identified

in clause (iv).’’;

(C) in subsection (d)—

(i) by striking ‘‘Attorney General’’ and inserting

‘‘Secretary of Homeland Security’’; and

(ii) by adding at the end the following new sentence:

‘‘The Secretary of Homeland Security may not

waive any eligibility requirement under this section

unless the Secretary notifies, with respect to the House

of Representatives, the Committee on Homeland Security,

the Committee on the Judiciary, the Committee

on Foreign Affairs, and the Committee on Appropriations,

and with respect to the Senate, the Committee

on Homeland Security and Governmental Affairs, the

Committee on the Judiciary, the Committee on Foreign

Relations, and the Committee on Appropriations not

later than 30 days before the effective date of such

waiver.’’;

(D) in subsection (f)(5)—

(i) by striking ‘‘Attorney General’’ each place it

appears and inserting ‘‘Secretary of Homeland Security’’;

and

Notification.

Deadline.

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121 STAT. 344 PUBLIC LAW 110–53—AUG. 3, 2007

(ii) by striking ‘‘of blank’’ and inserting ‘‘or loss

of’’;

(E) in subsection (h), by adding at the end the following

new paragraph:

‘‘(3) ELECTRONIC TRAVEL AUTHORIZATION SYSTEM.—

‘‘(A) SYSTEM.—The Secretary of Homeland Security,

in consultation with the Secretary of State, shall develop

and implement a fully automated electronic travel

authorization system (referred to in this paragraph as the

‘System’) to collect such biographical and other information

as the Secretary of Homeland Security determines necessary

to determine, in advance of travel, the eligibility

of, and whether there exists a law enforcement or security

risk in permitting, the alien to travel to the United States.

‘‘(B) FEES.—The Secretary of Homeland Security may

charge a fee for the use of the System, which shall be—

‘‘(i) set at a level that will ensure recovery of

the full costs of providing and administering the

System; and

‘‘(ii) available to pay the costs incurred to administer

the System.

‘‘(C) VALIDITY.—

‘‘(i) PERIOD.—The Secretary of Homeland Security,

in consultation with the Secretary of State, shall prescribe

regulations that provide for a period, not to

exceed three years, during which a determination of

eligibility to travel under the program will be valid.

Notwithstanding any other provision under this section,

the Secretary of Homeland Security may revoke

any such determination at any time and for any reason.

‘‘(ii) LIMITATION.—A determination by the Secretary

of Homeland Security that an alien is eligible

to travel to the United States under the program is

not a determination that the alien is admissible to

the United States.

‘‘(iii) NOT A DETERMINATION OF VISA ELIGIBILITY.—

A determination by the Secretary of Homeland Security

that an alien who applied for authorization to travel

to the United States through the System is not eligible

to travel under the program is not a determination

of eligibility for a visa to travel to the United States

and shall not preclude the alien from applying for

a visa.

‘‘(iv) JUDICIAL REVIEW.—Notwithstanding any

other provision of law, no court shall have jurisdiction

to review an eligibility determination under the

System.

‘‘(D) REPORT.—Not later than 60 days before publishing

notice regarding the implementation of the System in the

Federal Register, the Secretary of Homeland Security shall

submit a report regarding the implementation of the system

to—

‘‘(i) the Committee on Homeland Security of the

House of Representatives;

‘‘(ii) the Committee on the Judiciary of the House

of Representatives;

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PUBLIC LAW 110–53—AUG. 3, 2007 121 STAT. 345

‘‘(iii) the Committee on Foreign Affairs of the

House of Representatives;

‘‘(iv) the Permanent Select Committee on Intelligence

of the House of Representatives;

‘‘(v) the Committee on Appropriations of the House

of Representatives;

‘‘(vi) the Committee on Homeland Security and

Governmental Affairs of the Senate;

‘‘(vii) the Committee on the Judiciary of the Senate;

‘‘(viii) the Committee on Foreign Relations of the

Senate;

‘‘(ix) the Select Committee on Intelligence of the

Senate; and

‘‘(x) the Committee on Appropriations of the

Senate.’’; and

(F) by adding at the end the following new subsection:

‘‘(i) EXIT SYSTEM.—

‘‘(1) IN GENERAL.—Not later than one year after the date

of the enactment of this subsection, the Secretary of Homeland

Security shall establish an exit system that records the departure

on a flight leaving the United States of every alien participating

in the visa waiver program established under this section.

‘‘(2) SYSTEM REQUIREMENTS.—The system established under

paragraph (1) shall—

‘‘(A) match biometric information of the alien against

relevant watch lists and immigration information; and

‘‘(B) compare such biometric information against manifest

information collected by air carriers on passengers

departing the United States to confirm such aliens have

departed the United States.

‘‘(3) REPORT.—Not later than 180 days after the date of

the enactment of this subsection, the Secretary shall submit

to Congress a report that describes—

‘‘(A) the progress made in developing and deploying

the exit system established under this subsection; and

‘‘(B) the procedures by which the Secretary shall

improve the method of calculating the rates of nonimmigrants

who overstay their authorized period of stay

in the United States.’’.

(2) EFFECTIVE DATE.—Section 217(a)(11) of the Immigration

and Nationality Act, as added by paragraph (1)(A)(ii), shall

take effect on the date that is 60 days after the date on

which the Secretary of Homeland Security publishes notice

in the Federal Register of the requirement under such paragraph.

(e) AUTHORIZATION OF APPROPRIATIONS.—There are authorized

to be appropriated to the Secretary of Homeland Security such

sums as may be necessary to carry out this section and the amendments

made by this section.

Federal Register,

publication.

8 USC 1187 note.

Deadline.

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